Code of Criminal Procedure, 1973: s.439 – Bail – Grant of, in economic offence – In the instant case, CBI registered a case of corruption against some known and unknown suspects including the son of the appellant – Appellant was the then Union Finance Minister – He was however not named in the said FIR – Based on the said FIR, respondent directorate registered ECIR case for money laundering against the accused named in the FIR – Allegations in the said ECIR case were the same as those in the FIR – Appellant was not named in this case as well – Apprehending his arrest, appellant applied for anticipatory bail which was rejected – Appellant was arrested in CBI case and since then he had been in custody – In ECIR case, appellant was arrested on the grounds that payment of Rs.3 crores was made at the appellant’s instance to the companies controlled by his son on account of FIPB work done for INX Group and that due to non-co-operation of appellant, investigation was not fruitful and certain relevant information which was within his exclusive knowledge was withheld by him and thus his custodial investigation was necessary – After his arrest, appellant moved a regular bail application before High Court – By impugned order, High Court held test of flight risk, tampering of evidence and influencing of the witnesses in favour of appellant, however declined the bail on the ground that prima facie the allegations were serious in nature and the appellant played key and active role in the case – On appeal, held: Appellant was declined anticipatory bail earlier and was available for custodial interrogation for more than 45 days – In addition to the custodial interrogation, in case further investigation is made, the appellant would be bound to participate in such investigation as is required by the respondent – Further one of the co-accused has been granted bail by the High Court while the other co-accused is enjoying interim protection from arrest – Appellant is aged about 74 years and as noted by the High Court itself in its order, the appellant has already suffered two bouts of illness during incarceration and was put on antibiotics and advised to take steroids of maximum strength – In that circumstance, the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized – In view of all facts and circumstances, the appellant is granted bail.
Code of Criminal Procedure, 1973: s.439 – Bail – Consideration of bail application in economic offence – Held: Even economic offences fall under the category of “grave offence”, in view of the consequences that would befall on the society in cases of financial irregularities, and in such circumstance while considering the application for bail in such matters, the Court has to deal with the same, being sensitive to the nature of allegation made against the accused – One of the circumstances to consider the gravity of the offence is the term of sentence that is prescribed for the offence the accused is alleged to have committed – Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied – However, it is not a rule that bail should be denied in every case of economic offence since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so – The consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.
Allowing the appeal, the Court
HELD: 1. Perusal of the order dated 15.11.2019 impugned indicates that the Single Judge having taken note of the rival contentions in so far as the triple test or the tripod test to be applied while considering an application for grant of regular bail under Sec. 439 Cr.PC, has answered the same in paragraphs 50 to 53 of the order, in favour of the appellant. The Solicitor General, however, contended that the finding on likelihood of tampering and influencing witness has not been considered in its correct perspective. The finding in that regard has not been assailed and in such event, the appellant cannot be taken by surprise. Even otherwise as rightly observed by the Single Judge, the evidence and material stated to have been collected is already available with the Investigating agency. In the present situation, the appellant is not in political power nor is he holding any post in the Government of the day so as to be in a position to interfere. In that view, such allegation cannot be accepted on its face value. With regard to the witness having written that he is not prepared to be confronted as he is from the same State, the appellant cannot be held responsible for the same when there is no material to indicate that the appellant or anyone on his behalf had restrained or threatened the concerned witness who refused to be confronted with the appellant in custody. [Para 16][465-B-F]
2. The basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same, the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard, what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. In the circumstance, it would be clear that even after concluding the triple test in favour of the appellant, the Judge of the High Court was certainly justified in adverting to the issue relating to the gravity of the offence. However, the manner in which the conclusions are recorded in paragraphs 57 to 62 are disapproved wherein the observations are reflected to be in the nature of finding relating to the alleged offence. [Paras 21, 22][468-E-H; 469-A-D]
Shri Gurbaksh Singh Sibbia vs. State of Punjab, (1980)
2 SCC 565 : [1980] 3 SCR 383 – followed.
State of Bihar & Anr. v. Amit Kumar (2017) 13 SCC
751 : [2017] 4 SCR 503; Nimmagadda Prasad v. CBI (2013) 7 SCC 466; CBI v. Ramendu Chattopadhyay, Crl Appeal.No. 1711 of 2019; Seniors Fraud
Investigation Office v. Nittin Johari & Anr. (2019) 9 SCC 165; Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439; State of Gujarat v. Mohanlal Jitamalji Porwal (1987) 2 SCC 364 : [1987] 2 SCR 677 – relied on
3. The question as to whether the Court could look into the documents while considering an application for bail had arisen for consideration in the very case between the parties in Criminal Appeal No.130/2019 wherein through the judgment dated 05.09.2019 while considering the matter relating to the order dated 20.08.2019 whereby the High Court had rejected the bail, this Court had held that it would be open for the Court to receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. At the same time, this Court, had disapproved the manner in which the Judge of the High Court in the said case had verbatim quoted a note produced by the respondent. If that be the position, in the instant case, the Judge while adverting to the materials, ought not have recorded a finding based on the materials produced before him. While the Judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the Judge ought not to have recorded finding based on the materials produced in a sealed cover. Further while deciding the same case of the appellant in Crl. Appeal No.1340 of 2019, after holding so, this Court had consciously refrained from opening the sealed cover and perusing the documents lest some observations are made thereon after perusal of the same, which would prejudice the accused pre-trial. In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail. However, since the Single Judge of the High Court had perused the documents in sealed cover and arrived at certain conclusion and since that order is under challenge, it had become imperative for this Court to also open the sealed cover and peruse the contents so as to satisfy ourselves to that extent. A perusal showed that the statements of persons concerned have been recorded and the details collected have been collated. The recording of statements and the collation of material is in the nature of allegation against one of the co-accused son of appellant of opening shell companies and also purchasing benami properties in the name of relatives at various places in different countries. Except for recording the same, documents are not adverted to any further since ultimately, these allegations would have to be established in the trial wherein the accused/co-accused would have the opportunity of putting forth their case, if any, and an ultimate conclusion would be reached. Hence, the finding recorded by the Judge of the High Court based on the material in sealed cover is not justified. [Paras 23, 24][469-F-H; 470-A-H]
4. The appellant has not been named as one of the accused in the ECIR but the allegation while being made against the coaccused, it was indicated the appellant who was the Finance Minister at that point, has aided the illegal transactions since one of the co-accused is the son of the appellant. In this context, even if the statements on record and materials gathered are taken note, the complicity of the appellant will have to be established in the trial and if convicted, the appellant will undergo sentence. As taken note the anticipatory bail had been declined earlier and the appellant was available for custodial interrogation for more than 45 days. In addition to the custodial interrogation, if further investigation is to be made, the appellant would be bound to participate in such investigation as is required by the respondent. Further, one of the co-accused has been granted bail by the High Court while the other co-accused is enjoying interim protection from arrest. The appellant is aged about 74 years and as noted by the High Court itself in its order, the appellant has already suffered two bouts of illness during incarceration and was put on antibiotics and has been advised to take steroids of maximum strength. In that circumstance, the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a ‘flight risk’ and there is no possibility of tampering the evidence or influencing/intimidating the witnesses. Taking these and all other facts and circumstances including the duration of custody into consideration the appellant is entitled to be granted bail. [Para 25] [471-C-G]
Rohit Tandon vs. Directorate of Enforcement (2018) 11 SCC 46; P. Chidambaram v. CBI (Crl. Appeal No.
1603/2019); Sanjay Chandra v. CBI, (2012) 1 SCC 40: [2011] 13 SCR 309; Sanjay Chandra v. CBI, (2012) 1 SCC 40 : [2011] 13 SCR 309 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.